Initial Disclosures and Discovery Reform in the Wake of Plausible Pleading Standards

Abstract

This Note advocates for the reform of the federal initial disclosure of documents rule. Plausible pleadings, mandated by Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly, provide sufficient foundation to support increased use of initial disclosures as a means to reduce the costs of civil discovery. The Massachusetts Superior Court Business Litigation Session’s Discovery Pilot Project pioneered a reform initial disclosure rule. The Discovery Pilot Project’s initial disclosure rule differs from the initial disclosure requirement under the Federal Rules of Civil Procedure in that it (i) requires actual document production and (ii) is intended as a principal document discovery tool. The federal initial disclosure of documents rule should be amended to include an actual production requirement, but the use of initial disclosures as a principal discovery tool is still too ambitious to warrant national replication.